This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Friday, December 5, 2014

During the forum on Tuesday, there was
discussion about why Darren Wilson was not interviewed for a few
days after shooting Michael Brown. Former U.S. Attorney Jenny Durkan said that many police unions have negotiated a term
in their contracts that provides for a delay of two or three days before questioning after a shooting incident, based in part on studies that suggest that memory would be better after the delay. Jeffery Robinson observed that civilians who are involved in shooting incidents might also experience psychological stress, but police investigators don't wait three days to interview them.

Here's a little more information on that issue:

In some states a statute gives officers a period to obtain counsel before they are interrogated. See Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers' Bills of Rights, 14 B.U. Pub. Int. L.J. 185, 212-14 (2005) (links are to HeinOnline).

While officers may be asked to provide pertinent information soon after a shooting to aid the initial investigative process, whenever feasible, officers should have some recovery time before providing a full formal statement. Depending on the nature of the incident, the demands on the agency, and the emotional and physical
status of the officers, this can range from a few hours to several days. An officer’s memory will often benefit from at least one sleep cycle prior to being interviewed leading to more coherent and accurate statements.3 4 5 6 7 Providing a
secure setting, insulated from the press and curious coworkers, is important during the interview process.

This course examines issues of poverty and race in the criminal justice system, particularly with regard to the imposition of the death penalty. Topics include the right to counsel for people who cannot afford lawyers, racial discrimination, prosecutorial discretion, judicial independence, and mental health issues.

There are 40 videos, ranging from 18 to 45 minutes. I haven't figured it out, but that's a lot of instruction from one of the nation's leading authorities on the death penalty. Each video has related readings (from the YouTube description, you just click on a link to Dropbox).

Tuesday, December 2, 2014

This afternoon attorney Jeffery Robinson led a discussion on the events in Ferguson, MO—the killing of Michael Brown last summer, the grand jury this fall, and the protests in Ferguson and around the country—and the larger issues of racism, criminal justice, and law enforcement. Justice Sheryl Gordon McCloud and former U.S. Attorney Jenny Durkan were present and contributed to the discussion.

With a nod to Yogi Berra, Robinson titled his presentation "'You Can Observe a Lot Just by Watching': The Killing of Michael Brown and the Transparent Grand Jury Investigation."

The developers of the Implicit Assocation Test (IAT) are two social psychologists, Mahzarin R. Banaji (now at Harvard) and Anthony G. Greenwald (UW). They have written a very accessible and fascinating book reviewing the research: Blindspot: Hidden Biases of Good People (2013). Catalog record.

Jerry Kang, a law professor at UCLA has done a lot of work bringing these studies into law. See his page, Getting up to speed on implicit bias. Kang has a Ted Talk on the topic, too:

Thursday, October 23, 2014

On the HBO program Last Week Tonight, John Oliver observed that without video Supreme Court oral arguments are pretty dry, even with courtroom sketches as backdrops. So he proposed that the audio be livened up with video. What video? Dogs!

Clip from Last Week Tonight with John Oliver, Oct. 19, 2014.

Oliver and his team didn't stop with a cute video of their own. They went further, posting clips of nine canine justices and two lawyers that others could mash up with oral argument recordings. Some of the casting is apt: Justice Ginsburg, played by a Chihuahua, is petite; Justice Scalia, played by a Bulldog, is assertive and jowly.

The YouTube community has responded. Just a few days after the original broadcast, you can now watch the canine Court hear arguments in:

I can't be alone in finding these amusing (otherwise, why would so many people have gone to the trouble of making the mash-ups?). Love the dogs. I also like the court reporter pecking at her stenotpe machine.

Thursday, August 7, 2014

Unlike the federal circuits, the Washington Court of Appeals is a
"unitary system"—one court that sits in three divisions, not three
separate courts. But sometimes panels from two divisions disagree with
each other, so there can be conflicting precedent. What's a trial judge
to do? And how should counsel frame their arguments to the trial court?

Friday, June 20, 2014

Under RPC 1.2(d), a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal . . ." Does this cover lawyers advising clients under Washington's new marijuana law, when possession is still a crime under federal law?

[18]At least until there is a change in federal enforcement policy, a lawyer may counsel a client regarding the validity, scope, and meaning of Washington Initiative 502 and may assist a client in conduct that the lawyer reasonably believes in permitted by this initiative and the statutes, regulations, orders and other state and local provisions implementing them.

Anyone may comment on the proposal and, as the court receives comments, you can read what others have sent.

You can sign up here to get email notifications of proposed court rule changes. You can also sign up for new opinions, caseload reports, and other information from the Washington Courts.

Don Stemen, from Measures for Justice, a national organization working on ways to measure how well or poorly justice systems are performing basic legal services and then advocating to use the data to improve systems. Stemen is also on the faculty of the Dept. of Criminal Justice and Criminology at Loyola Chicago. His profile includes a list of recent publications.

An advance copy of the report is available on the Washington Defender Association's website: Part 1 (General Descriptive Report on the "Justice in Washington State Survey, 2012") (Oct. 1, 2012), Part 2 (Justice in Washington State Survey, 2012: Analysis of Results, 2nd Report) (rev. March 24, 2014)

Monday, April 28, 2014

Is it permissible for a lawyer to look for information about jurors on social media? A new ABA ethics opinion (Formal Opinion 466) says yes (subject to local rules and court orders)—but lawyers shouldn't ask to connect with the jurors. See this article from ABA Journal online (April 24, 2014).

Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory.

Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction.

Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In the legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This paper suggests that may not always be true.

This paper details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results.

The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero sum credibility contest in which believing the plaintiff’s story meant disbelieving the defendant’s (and vice versa). This “zero sum” effect did not appear in the control version of the trial.

In sum, the results of our experiment suggest that while prior convictions are highly noticeable and powerful pieces of evidence, they may not always be the bane that lawyers think they are. Nevertheless, the introduction of this evidence has the potential to change a civil trial by changing the juror decision-making process.

A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later.
The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.

Before one is able to understand why jury nullification is a good idea, one must understand the importance of a trial by jury. Our Founding Fathers considered them to be a powerful weapon in the war against tyranny. Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”. In the Federalist Papers, Alexander Hamilton wrote that trial by jury was the “very palladium of free government” and a “valuable check upon corruption”.

Given the strength of these opinions, then, it is no surprise that the denial of trials by jury was one of the foremost acts of despotism listed by Thomas Jefferson in the Declaration of Independence.

As for the concept that juries have not only the power but the obligation to nullify unjust rulings of a judge, John Adams wrote, “It is not only (the juror’s) right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court”.

Our Founding Fathers zealously defended this right and recognized that only an informed and empowered jury could effectively protect a defendant from the potentially harmful effects of autocratic judges. Jury nullification allows citizens to have the final say on what is fair in a court of law.

Therefore, I ask for your support of HB 315. Jury nullification is a good idea and one supported by Constitutional principles of freedom.

The
state attorney general's office opposes the bill, indicating it would lead to
“unfair and disorderly trials.” Additionally, Doug Gardner, director of
the Legislature's legal services division wrote
a memo which expressed concern that the bill may not comply with U.S.
Supreme Court precedent that "it is the duty of juries in criminal cases
to take the law from the court, and apply that law to the facts as they find
them to be from the evidence." Additionally, he
wrote another memo comparing the provisions in House Bill 315 to New
Hampshire Revised Statute 519:23-b, which is New Hampshire’s statutory
authority for jury nullification.

Passage of this bill
would result in more cases brought to trial by jury because even though the
offender does not dispute that he or she broke the law, the offender could
argue for the jury not to follow the law.

Wednesday, March 26, 2014

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.

How do you figure out what sort of job to look for? Experienced lawyers and law teachers Jennifer Fan and Deborah Maranville say the main focus shouldn't be on the substantive area (bankruptcy vs. environmental law, for instance). Instead consider

Allocution—the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing—is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions—and many others—are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains animportant feature of the criminal-justice process.

Tuesday, March 4, 2014

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.

So there's a lot going on in a lot of places. One more component is sharing information.

The Natural Resource Bank is a group of "16 leading national juvenile justice research, reform, and advocacy organizations that provide expert advice, training, and technical assistance to the core states and action network sites."

Recently Models for Change launched a Resource Center Partnership, in which four different groups focus on four areas to "provide administrators, practitioners and policymakers with technical assistance, trainings, and proven tools and resources."

Tuesday, February 18, 2014

If you were running a public defender office, wouldn't you want to know which lawyers were getting the best results for the clients? And how you could help lawyers improve their results? Here's an interesting paper not only speculating about the possibility but looking at actual data from the North Carolina courts:Ronald F. Wright & Ralph A. Peeples, Criminal Defense Lawyer Moneyball: A Demonstration Project, Wake Forest L. Rev. (forthcoming), available at http://ssrn.com/abstract=2190570:

The book and movie “Moneyball” portray the iconoclastic general manager of a baseball team. When drafting new players, this GM de-emphasized the insights of baseball scouts as on-the-scene evaluators of a player’s talents, and looked instead to statistical measures of player quality. We take this idea from baseball into the criminal courts. In this article, we argue that criminal defense organizations could meaningfully evaluate the skills of their attorneys through the use of metrics, rather than relying so heavily on the in-person observation of their work in the courtroom. Statistical performance-based rankings could support better leadership in defense attorney organizations.

Rather than simply assert that a rating system is possible, we attempt in this paper to show its feasibility. We employ data from the North Carolina courts as a demonstration project to illustrate how an office might develop a rating system for the attorneys who work there. Our attorney ratings are based on the bottom line: sentencing reductions those attorneys achieve for their clients, principally through plea negotiations. We then use our tentative quality ratings to address the question of structural causes. What makes one attorney noticeably more or less effective than the typical defense lawyer? Our most surprising discovery is that experience actually has a negative correlation with performance after the first eight years: the more time an attorney has spent in the profession, the more likely that her clients will obtain a more severe sentence. We close with some reflections on other potential users of a statistical rating system, concluding that managers of defense organizations are better situated than judges, prosecutors, or clients to make wise use of ratings data.

Wednesday, January 29, 2014

ABSTRACT: The last thirty years have seen an enormous increase not only
in exonerations of innocent defendants but also academic scholarship on
erroneous convictions. This literature has identified a number of common
factors that appear frequently in erroneous conviction cases, including
forensic error, prosecutorial misconduct, false confessions, and eyewitness
misidentification. However, without a comparison or control group of
cases, researchers risk labeling these factors as “causes” of erroneous
convictions when they may be merely correlates. This Article reports results
from the first large-scale empirical research project to compare wrongful
convictions with other innocence cases in which the defendant escaped
conviction (so-called “near misses”). Employing statistical methods and an
expert panel, the research helps us to understand how the criminal justice
system identifies innocent defendants in order to prevent erroneous
convictions. In another first, the research secured the cooperation of
practitioners from multiple sides of the criminal justice system, including the
national Innocence Project, the Police Foundation, the Association of
Prosecuting Attorneys, and the National District Attorneys Association.
The results highlight ten factors that distinguish wrongful convictions from
near misses, but the larger story is one of system failure in which the
protections of the criminal justice system operate in a counterintuitive manner. The Article closes with a series of policy reforms to address these
failings.

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

Monday, January 20, 2014

faced a tough decision: after learning that the jury foreman defied her instructions not to research legal issues on the Web, should she let the verdict stand or declare a mistrial?

The juror had looked up the penalty for first-degree rape—but in criminal trials, the juror is supposed to focus on the definition of the crime, not the penalty. The judge decided that the jury had been sufficiently tainted by the juror's action that a new trial was warranted.

As people increasingly carry around Internet access in their pockets and reflexively look up actors on IMDb, rate restaurants on Yelp, and settle trivia disputes with a quick look at Wikipedia, the use of the web by jurors has challenged judges, advocates, and parties nationwide.

It is essential to a fair trial that
everything you learn about this case comes to you in this courtroom, and
only in this courtroom. You must not allow yourself to be exposed to
any outside information about this case. Do not permit anyone to discuss
or comment about it in your presence, and do not remain within hearing
of such conversations. You must keep your mind free of outside
influences so that your decision will be based entirely on the evidence
presented during the trial and on my instructions to you about the law.

Until you are dismissed at the end of
this trial, you must avoid outside sources such as newspapers,
magazines, blogs, the internet, or radio or television broadcasts which
may discuss this case or issues involved in this trial. If you start to
hear or read information about anything related to the case, you must
act immediately so that you no longer hear or see it. By giving this
instruction I do not mean to suggest that this particular case is
newsworthy; I give this instruction in every case.

During the trial, do not try to
determine on your own what the law is. Do not seek out any evidence on
your own. Do not consult dictionaries or other reference materials. Do
not conduct any research into the facts, the issues, or the people
involved in this case. This means you may not use [Google or other
internet search engines] [internet resources] to look into anything at
all related to this case. Do not inspect the scene of any event involved
in this case. If your ordinary travel will result in passing or seeing
the location of any event involved in this case, do not stop or try to
investigate. You must keep your mind clear of anything that is not
presented to you in this courtroom.

For more on the impact of the web on litigation, see these articles by UW Law students from the last few years: